Feds won’t overrule states on marijuana laws

posted at 12:15 pm on October 19, 2009 by Ed Morrissey

In a shocking move, the Obama administration has decided to embrace federalism. Well, not really all that shocking, as the Department of Justice plans to reverse a Bush administration policy of enforcing federal marijuana laws in states that allow for medicinal use of the substance. The decision, to be officially announced later today, will impact fourteen states that allow for the possession and distribution of marijuana under varying levels of medical supervision:

Federal drug agents won’t pursue pot-smoking patients or their sanctioned suppliers in states that allow medical marijuana, under new legal guidelines to be issued Monday by the Obama administration.

Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state law.

The guidelines to be issued by the department do, however, make it clear that agents will go after people whose marijuana distribution goes beyond what is permitted under state law or use medical marijuana as a cover for other crimes, the officials said.

The new policy is a significant departure from the Bush administration, which insisted it would continue to enforce federal anti-pot laws regardless of state codes.

If we could count on this as an indicator for a trend towards federalism in the Obama administration, I’d call it the best development since Election Day. Unfortunately, this is as much an aberration in the official approach to federalism as Bush’s insistence on overruling state authorities was to Bush’s overall view on federalism during his term in office, as Michelle reminds us today. It serves as a reminder that Washington DC only discovers federalism when they can either make money off of it or save themselves a headache by invoking it.

Nevertheless, this is still a good development. Not only does this forgo the spending of massive amounts of money in these fourteen states, it serves as an acknowledgment that states have sovereign rights themselves, including the right to make decisions about the legality of intoxicating substances. Unlike the 18th Amendment, which gave the federal government jurisdiction over alcohol use and distribution for a brief period of prohibition, the federal government only has the jurisdiction over marijuana when it moves across state lines or national borders, and its use on federal land.

That acknowledgment may serve us well in other debates, especially on health care. After all, if the Department of Justice now admits that it does not have the authority to override states on marijuana practices, then what authority does it have to force Americans to buy health insurance, through exchanges or anywhere else? Where does Congress derive the authority to demand that states create those exchanges in the first place? It will be interesting indeed to watch the federal government throw people in jail for refusing to buy health insurance while taking a pass on prosecuting marijuana distributors in California and Arizona.

On the point of marijuana, it also holds some promise as the first step in reviewing the war on the herb that costs us billions of dollars and infringes on personal liberties while attempting to protect us from ourselves — and a product less lethal than alcohol. Maybe we can finally have a rational debate on at least this front of the “war on drugs,” which has done more damage to federalism than Democrats or Republicans combined.

Madison Conservative doesn’t share my enthusiasm for this precedent. Be sure to read his take in the Green Room.

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As I said in the headlines, there is nothing federalist about this. This is nothing but the feds selectively enforcing law. Holder admits as much when he states,

“but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.”

The Feral government is just saying that they will pick and choose whatever they want to do, using state law to justify their moves, when it’s convenient, and not accepting state law (“hide behind claims of compliance with state law”) when they consider it inconvenient.

This is as far from federalism, or the general rule of law, as it gets.

Until the federal law is repealed, the Attorney General should enforce it. Sure, there is prosecutorial discretion in particular cases, but publicly announcing he won’t do what he took an oath to do in an entire category of cases is another matter.

Until the federal law is repealed, the Attorney General should enforce it. Sure, there is prosecutorial discretion in particular cases, but publicly announcing he won’t do what he took an oath to do in an entire category of cases is another matter.

Wethal on October 19, 2009 at 12:23 PM

I seem to remember recently a bunch of AG’s throughout the country going on record saying they wont persue certain non-violent crimes due to budgetary concerns. Pretty much the same thing IMO. Even though all these people swear oaths, they seem to think they can break them anytime they want to.

Want to change the policy? Be honest and change the law. Personally, I thought “Raich” was wrongly decided, but Congress still has the power to change the pertinent federal laws, which would be the correct way to address the issue.

Yeah I explained this in the headlines thread too, but it helps to have common sense when reading this – Holder wasn’t writing a statute that is going to be interpreted by the courts, this is supposed to be a guideline for the DOJ. The fact that crazy people like yourself who believe the collapse of the United States is imminent can’t understand it doesn’t mean it’s upending the rule of law in the United States.

Saw the link to the picture of O smoking his joint and you just have to wonder: who’s buying his dope for him now? I mean besides us. Who’s making the purchase for him? Are those cigarettes or something else? Just letting my imagination run away with me.

Saw the link to the picture of O smoking his joint and you just have to wonder: who’s buying his dope for him now? I mean besides us. Who’s making the purchase for him? Are those cigarettes or something else? Just letting my imagination run away with me.

Driefromseattle on October 19, 2009 at 12:39 PM

Remember when Geraldo staged his news story about buying drugs near the White House? I bet he and Obama had an awesome background interview…

At least now we know why he was so damn obsessed with finishing his waffle. “Hey Sweetie, can I get fritos on this waffle?”

No law has been changed here, this question is about resources. So they’re not going to prosecute people who break the federal law when the state law protects them.

HOWEVER-

They are still going to prosecute people who try to use the state law as a “shield” for conducting what would be a more pernicious offense.

Proud Rino on October 19, 2009 at 12:28 PM

Let me explain this carefully (since you are slow): if someone is breaking a law, then that person is not hiding behind compliance, since he is BREAKING A LAW. Only a total moron, such as yourself, would think to talk about hiding behind compliance while breaking another law as if it meant anything.

Let me make this as simple as I possibly can (since you only think on the level of a 3rd grader):

If someone is in compliance with state law and operating within that state, what could possibly be “illegal”, let alone “clearly illegal” that the feral government would be interested in prosecuting, if they are claiming to defer to state law in this case?

How about focusing on the fact that the current system doesn’t work with the feds applying different standards for different states. This is one of those everybody in the pool are everybody out instead of trying to enforce what essentially are different state standards.

And for the record, I’m against pretty much all the libertarian points put forth by potheads. It’s a drug. It impairs reflexes. It is not a harmless variant on smoking tobacco.

Like I have said multiple times, you have to read this using common sense, which apparently you lack. It’s not a statute, it’s a memo and it’s designed to provide guidelines for the DoJ. So while Holder is saying, “Don’t go after people who aren’t violating a state law with regard to medical marijuana,” he’s also saying, “But don’t let people use those laws as a pretext for violating other, more serious laws.”

Could it have been worded better? Sure, but since they’re dealing with mostly smart people, it’s not really a problem. Unfortunately, you got your hands on it and got stupid all over it!

It would be fun if, based on this ruling, someone did a poll to see the political affiliation of marijuana smokers. Libertarians aside, you’d expect the percentages of admitted pot smokers to skew towards the Democrats, which would explain the DOJ action far more than any sort of sudden love for federalist/libertarian philosophy by Eric Holder.

(Of course, motivating liberal Democratic marijuana smokers to go out and vote or become community organizers might be another thing entirely, especially once their burning plant of choice is legalized.)

Too bad that same attitude didn’t apply to the Stimulus money. Remember the big ruckus raised because Gov Sanford and then Gov Palin were trying to turn down the money because of all the unfunded mandates in it?

I guess they figure if everybody will just mellow out on some pot all of sudden the national debt, healthcare, runaway spending and Muslim extremists just won’t seem so big.

Fact is, Marijuana use fell statistically from 1980 to 1988 in all age classes. So did cocaine use. Care to guess when it spiked again? That’s right during the Clinton Years.

fogw on October 19, 2009 at 12:54 PM

One can only conclude that voting Democrat causes one to become addicted to drugs. Just say no- vote Republican.

There needs to be a debate on the use of pot but snarky comments from libertarians declaring the drug an ‘herb that costs us billions of dollars and infringes on personal liberties while attempting to protect us from ourselves.’

If we are going to have a debate it needs to in an honest context not the strawman put forth by dopers. Put another
way, would you allow somebody who was smoking an “herb” all afternoon drive your kid home?

It would be fun if, based on this ruling, someone did a poll to see the political affiliation of marijuana smokers. Libertarians aside, you’d expect the percentages of admitted pot smokers to skew towards the Democrats, which would explain the DOJ action far more than any sort of sudden love for federalist/libertarian philosophy by Eric Holder.

(Of course, motivating liberal Democratic marijuana smokers to go out and vote or become community organizers might be another thing entirely, especially once their burning plant of choice is legalized.)

jon1979 on October 19, 2009 at 12:57 PM

But wouldn’t that be more like the carbon/global warming argument, what came first? Wouldn’t it naturally be likely ythat the party most inclined toward legalization would have the most users?

If we are going to have a debate it needs to in an honest context not the strawman put forth by dopers. Put another
way, would you allow somebody who was smoking an “herb” all afternoon drive your kid home?

highhopes on October 19, 2009 at 1:00 PM

Ok, so you support taking someone’s freedom and sanctioning them with large fines for something less addictive than cigarettes and something that impair less than alcohol?

I know the pendulum needed to eventually swing back…pretending that marijuana use turns people into axe-murderers was pretty silly. But let’s not let the pendulum swing back so far as to create just as much silliness in the other direction. We can easily argue about government “saving ourselves from ourselves” and many other aspects of this bit of news and other related ones.

But could we please drop the business about pot being “safer” than alcohol? Smoking a joint a day puts you at risk of all the respiratory conditions that cigarettes do. Drinking a glass of wine a day can prevent a heart attack.

Both can be used (in my opinion) responsibly and both can be abused. It just weakens your argument a little when you make claims that are so patently false.

I can argue that the Government shouldn’t tell people that they can’t eat a Twinkie once in a while, but I won’t say that a Twinkie is less unhealthy than a Twizzler to try and make my point.

Even though all these people swear oaths, they seem to think they can break them anytime they want to.

Johnnyreb on October 19, 2009 at 12:28 PM

I don’t see it as breaking anything.

I really don’t understand the people claiming this is unlawful, shirking responsibility or wrong.

Are you trying to say that a DOJ employee should refuse to take on an assignment because the dept has chosen to pursue certain types of crime?

Wouldn’t that employee then be doing the same thing by ignoring one crime in favor of another?

The opposition to this decision just escapes me. Many of us sit around harping about state rights and an overbearing federal authority and now that the feds are leaving it to the states people are harping on it being wrong and even criminal to do so.

Ok, so you support taking someone’s freedom and sanctioning them with large fines for something less addictive than cigarettes and something that impair less than alcohol?

LevStrauss on October 19, 2009 at 1:04 PM

Aha!

So when I was arguing that some were trying to frame pot-smoking as a “right” by them noting its use as a “liberty”… I was told a I was creating a straw man.

Smoking pot (drinking alcohol, etc.) is neither a “freedom” nor a “right.” I believe it should be left up to states and/or municipalities (judging by local norms)… but that is a legislative matter in the end. I have no problem with questioning the Constitutionality of the federal law under the 10th Amendment… but ONLY as a limited power issue NOT as a “right to smoke pot” (i.e. “freedom”) issue.

“Department of Justice now admits that it does not have the authority to override states on marijuana practices”

If only. What they said was something else…they won’t bother to excercise their authority when state laws are being complied with strictly. They reserve the right to intervene when they themselves judge a grower or seller or prescriber or purchaser is not within its own definition of “strict compliance with state law”.

Those supporting getting the feds out of pot use should be equally rabid about getting them out of the control of substances leading to meth production. After all, why should the state be concerned what a citizen does with medication? For that matter, what right to they have to mandate a legal drinking age?

I don’t understand the rationale for conservatives opposing federal marijuana laws. The arguments are specious at best, “It’s bad”, “It’s a gateway” but at least we’ve taken a step away from Reefer Madness. I live in Texas, where implications of enforcing this archaic legislation are on the news every day in the form of increasing death tolls.

If we are for freedom from national sovereignty, then we must be for it. The prejudice against marijuana is so deeply rooted as to be invisible to most advocates of prohibition. I don’t hear many people talking about what a great move for personal liberty the 18th amendment was. Instead, it’s a non -issue because, thankfully, we came to our senses and quickly passed the 21st amendment.

A fourteen year experiment is far too long, yet it pales in comparison to the 72 years that have drained since the repeal in 1937. What’s more strange is how the sides have lined up on this issue… the ones calling for freedom tend to hail from the left, while the loudest voices in opposition to repeal fill the aisles on the right.

It’s time for an intelligent conversation on this topic. Thank you for picking up on it, Ed.

Reading the comments would lead me to believe that pot just because legal and the fact is that it hasn’t. The feds dumped the whole thing into the states laps where there are laws against use. Why are people talking like there will be a head shop on every corner before the day is out?

They reserve the right to intervene when they themselves judge a grower or seller or prescriber or purchaser is not within its own definition of “strict compliance with state law”a supporter of Leftist causes

More like setting the table for turning the US into Amsterdam where the social costs of drug abuse are absorbed by the system. Fact of the matter is that pot should be as villified as cigarettes or any other unhealthy activities.

So when I was arguing that some were trying to frame pot-smoking as a “right” by them noting its use as a “liberty”… I was told a I was creating a straw man.

Smoking pot (drinking alcohol, etc.) is neither a “freedom” nor a “right.” I believe it should be left up to states and/or municipalities (judging by local norms)… but that is a legislative matter in the end. I have no problem with questioning the Constitutionality of the federal law under the 10th Amendment… but ONLY as a limited power issue NOT as a “right to smoke pot” (i.e. “freedom”) issue.

mankai on October 19, 2009 at 1:09 PM

No, you just misunderstood. When you put some in jail you are taking away their freedom. I wasn’t saying “take away their freedom to do X”. I meant taking away their freedom, period.